Saturday, January 30, 2010

Prop 8 Trial Summary: Plaintiffs Demonstrate Unconstitutionality of Prop 8

From the American Foundation for Equal Rights, the group behind the federal challenge to Prop 8:

Plaintiffs’ Witnesses and Defendant-Intervenors' Own Witnesses Testify to Harm, Unreasonableness of Prop. 8

“I just want to get married…it's as simple as that. I love someone. I want to get married. My state is supposed to protect me. It's not supposed to discriminate against me.” – Plaintiff Paul Katami

Judge: “I'm asking you to tell me how it would harm opposite-sex marriages.”
Pro-Prop. 8 Atty Cooper: “All right.”
Judge: “All right. Let's play on the same playing field for once.”
Cooper: “Your Honor, my answer is: I don't know. I don't know.” – 10/14/09 pretrial hearing rejecting defendant intervenors' request for summary judgment

JANUARY 29, 2010 – Lawyers representing two couples who want to marry but cannot because of Proposition 8 demonstrated the unconstitutionality of the initiative through the presentation of 17 witnesses and revealing cross-examination of the defendant-intervenors’ witnesses.

Since trial began over the unconstitutionality of Prop. 8 on January 11, it was demonstrated in the courtroom of Chief Judge Vaughn R. Walker of the U.S. District Court, Northern District of California, that:

• Prop. 8 does irreparable harm to Americans
• Marriage has shed discriminatory restrictions over time
• Gay men and lesbians are entitled to the full protection of the 14th Amendment
• There is no good reason for Prop. 8's denial of fundamental civil rights

Theodore Olson and David Boies, who notably faced off in 2000's Bush v. Gore, were brought together to lead the legal team against Prop. 8 by the American Foundation for Equal Rights. They are representing Kris Perry & Sandy Stier and Paul Katami & Jeff Zarrillo, two couples who want to be married but cannot because of Prop. 8.

Their powerful testimony, along with that of author Helen Zia; the Republican Mayor of San Diego, Jerry Sanders; and Ryan Kendall, who was forced to undergo “conversion therapy” intended to change him from gay to straight, presented compelling, first-hand testimony as to the harm of Prop. 8 and its role in the long and continuing history of discrimination against gay men and lesbians.

Nine eminent experts also testified, including professors from Yale, Harvard, Stanford, Columbia, Cambridge, and UCLA who are recognized internationally as leading scholars in history, economics, psychology, sociomedical science, political science, and more. The testimonies, research, and findings of each stood up to several hours of cross-examination from the defendant-intervenors. (Brief bios of all witnesses)

Olson and Boies also called to the stand William Tam, an Official Proponent of Prop. 8, whose testimony revealed the discriminatory motivations of the initiative and how the Prop. 8 campaign used him and others to deliver messages about disease, incest, polygamy, and pedophilia in support of their overall “protect children” message. He was masterfully questioned by Boies.

For Tam quotes and campaign communications, go to here and here.

Documents and videos presented by the Olson and Boies team also revealed that the Prop. 8 campaign paid for broadcasts that sought to link marriage equality to incest, polygamy, bestiality, and pedophilia to justify the restriction of people’s civil rights. This clearly points to the discriminatory motivations and unconstitutionality of the initiative.

Olson and Boies also presented to the court the depositions of the four expert witnesses that the defendant-intervenors dropped from their witness list. The defendant-intervenors cut their witness list from six to two after those experts made several statements damaging to Prop. 8 and in support of the plaintiffs' case during their depositions. Go here.

The defendant-intervenors' own experts stated under oath in their depositions that:
• Equal marriage would increase family stability and improve the lives of children
• Sexual orientation is not something that can be readily changed
• Gay men and lesbians have faced a long history of discrimination including violence – discrimination that continues today and that includes Prop. 8
• There is broad scientific and professional consensus in favor of equal marriage

Under questioning from Boies, the credibility of the defendant-intervenors’ two witnesses was thoroughly undermined on the stand. It was revealed that political science professor Kenneth Miller, called by the defendant-intervenors to assert that gay men and lesbians are not politically vulnerable, has written only one peer-reviewed publication regarding gays and lesbian politics – and that the article (published in France) dealt with Prop. 8, which, of course, was a strong blow to their rights.

Furthermore, Miller admitted his testimony was in part based on materials provided to him by the attorneys defending Prop. 8. Later it was revealed that Miller could not remember whether attorneys had provided at least 65 percent of the materials he based his testimony on, totaling well over 200 documents, articles, etc.

The defendant-intervenors’ star witness, David Blankenhorn, admitted on the stand that he has written only two peer-reviewed publications in his life, none of which are relevant to this case; does not hold a doctorate and that his master’s thesis centered on Victorian cabinetmakers; has never conducted any scientific research on same-sex marriage; and has not read the U.S. Supreme Court rulings that deal with marriage as a fundamental right.

Miller made multiple admissions that bolster the plaintiffs’ case, including that Prop. 8 at least in part passed because of “anti-gay stereotypes” and “prejudice,” and that initiatives like Prop. 8 “can be and have been used to disadvantage minorities.”

Blankenhorn admitted that “Adopting same-sex marriage would be likely to improve the well-being of gay and lesbian households and their children,” and would be “a victory for the worthy ideas of tolerance and inclusion” and “a victory for, and another key expansion of, the American idea.” He also testified that it would result in fewer children growing up in state institutions and instead being raised by loving parents and would in fact reduce the divorce rate; reduce promiscuity; improve the stability of couples’ relationships; increase wealth for families and reduce government costs; and a decline in “anti-gay prejudice” and “anti-gay hate crimes.”

See Blankenhorn's admissions.

Outline of Case

Olson, who has won two Supreme Court decisions since this case was filed, and who has argued more cases to the Supreme Court than any other active attorney, delivered the plaintiffs' opening statement.

***He noted that the U.S. Supreme Court has recognized the fundamental civil right of marriage for all Americans, including in its Loving v. Virginia decision, which in 1967 eliminated interracial marriage bans.***

“This case is about marriage and equality. Plaintiffs are being denied both the right to marry, and the right to equality under the law. The Supreme Court of the United States has repeatedly described the right to marriage as 'one of the vital personal rights essential to the orderly pursuit of happiness by free men;' a 'basic civil right;' a component of the constitutional rights to liberty, privacy, association, and intimate choice; an expression of emotional support and public commitment; the exercise of spiritual unity; and a fulfillment of one’s self,” he said. “In short, in the words of the highest court in the land, marriage is 'the most important relation in life,' and 'of fundamental importance for all individuals.'”

See full text here.


***Stigma and Discrimination***

GREGORY HEREK, Ph.D., a Professor of Psychology at the University of California at Davis testified that "social stigma" gives "a level of permission to attack" gay men and lesbians.

"If two men were to walk down the street holding hands in many places, that would elicit a great deal of negative reaction," he testified.

MAYOR SANDERS testified, “If government tolerates discrimination against anyone for any reason, it becomes an excuse for the public to do exactly the same thing.”

ILAN H. MEYER, Ph.D., Associate Professor of Clinical Sociomedical Sciences at Columbia University’s Mailman School of Public Health, testified that Prop. 8 treats gay men and lesbians as if they are “not seen as equal… not respected by my state or by my country, by my fellow citizens.”

“As I described stigma earlier, I would say that law, and certainly a constitutional part of the law, would be a very strong part of, as I described, the social structures that define stigma, that define access. In a very simple way, you can think of it as a block or gate toward a particular institution, toward attaining a particular goal. So, in that sense, it is very much fitting in the definition of structural stigma,” Meyer testified. “[Prop. 8 imposes stigma] by the fact that it denies them access to the institution of marriage. As I said, people in our society have goals that are cherished by all people. Again, that's part of social convention, that we all grow up raised to think that there are certain things that we want to achieve in life. And, in this case, this Proposition 8, in fact, says that if you are gay or lesbian, you cannot achieve this particular goal.”

ZARRILLO: “The word 'marriage' has a special meaning. ...If it wasn't so important, we wouldn't be here today,” he testified. “I want to be able to share the joy and the happiness that my parents felt, my brother felt, my friends, my co-workers, my neighbors, of having the opportunity to be married. It's the logical next step for us.”

“When someone is married, and whether it's an introduction with a stranger, whether it's someone noticing my ring, or something of that nature, it says to them these individuals are serious; these individuals are committed to one another; they have taken that step to be involved in a relationship that one hopes lasts the rest of their life.”

KATAMI: “When you find someone who is not only your best friend but your best advocate and supporter in life, it's a natural next step for me to want to be married to that person,” he testified. “I can safely say that if I were married to Jeff, I know that the struggle that we have validating ourselves to other people would be diminished and potentially eradicated.”

PERRY: “I want to marry Sandy. I want to have a stable and secure relationship with her that then we can include our children in,” she testified. “And I want the discrimination we are feeling with Proposition 8 to end and for a more positive, joyful part of our lives to begin.”

STIER testified: “I'm just trying to get the rights that the Constitution already says I have.”

***Economic Harm***

M.V. LEE BADGETT, Ph.D., a Professor of Economics at the University of Massachusetts, Amherst, testified, "Prop. 8 has inflicted substantial economic harm on same-sex couples and their children who live here in California.”

EDMUND EGAN, Ph.D., Chief Economist for the City and County of San Francisco, testified that Proposition 8 is a drain on government budgets, and that legalizing same-sex marriage would generate significant revenues and increase personal wealth, and would also reduce the burden on government services from people without health insurance and other benefits.

“It’s clear to me that Proposition 8 has a negative material impact,” he testified.

***No Substitute for Marriage***

NANCY COTT, Ph.D., the Jonathan Trumbull Professor of American History at Harvard University, testified that “the fact that the state is involved in granting these kinds of benefits and legitimacy to the marital family tends to lend a prestige, a status to that institution that no informal marriage has ever approximated.”

STIER: “Certainly nothing about domestic partnership as an institution -- not even an institution, but as a legal agreement -- indicates the love and commitment that are inherent in marriage, and it doesn't have anything to do for us with the nature of our relationship and the type of enduring relationship we want it to be. It's just a legal document,” she testified.

LETITIA ANNE PEPLAU, Ph.D. Professor of Psychology at the University of California, Los Angeles, testified that she has “great confidence that some of the things that come from marriage, believing that you are part of the first class kind of relationship in this country, that you are -- that you are in the status of relationships that this society most values, most esteems, considers the most legitimate and the most appropriate, undoubtedly has benefits that are not part of domestic partnerships.”

HELEN ZIA, an Asian-American author and a lesbian, testified about her experiences with discrimination, the effects of being denied the right to marry and the importance of being able to be married in 2008.
"My mother is an immigrant from China. She really doesn’t get what partner is," she testified. "Marriage made it very clear that I was family, that we are family, and where we stand."

DR. MEYER testified that domestic partnership is not an adequate substitute for marriage, and said he doubted that society places any value on domestic partnership. “I don’t know if it has any social meaning,” he testified. “It is, I think, quite clear that young children do not aspire to become domestic partners. But, certainly, the word ‘marriage’ is something that many people aspire to.”


DR. COTT discussed the history of marriage and that it has shed discriminatory restrictions.

“As many as 41 states and territories had for significant periods of their history on marriage between a white person and a person of color.... And long ago marriage had an important political governance purpose. It set up men as heads of households who would be responsible economically for their spouses and for any of their dependents, whether those were biological children, adopted children, stepchildren, slaves, apprentices, et cetera,” she testified.

“Now, that political governance purpose of marriage today is -- has shifted rather dramatically, because we no longer assume that a single head of household governs everyone below it. We have a much more individualized distribution of political power in our population, particularly since 1920, when women got the right to vote. …The institution of marriage has always been at least as much about supporting adults as it has been about supporting minors, children, as the proponents tend to emphasize the child's side.”

DR. COTT also testified about the meaning of marriage in the context of slavery. “When slaves were emancipated, they flocked to get married. And this was not trivial to them, by any means. They saw the ability to marry legally, to replace the informal unions in which they had formed families and had children, many of them, to replace those informal unions with legal, valid marriage in which the states in which they lived would presumably protect their vows to each other. In fact, one quote that historians have drawn out from the record ... it was said by an ex-slave who had also been a Union soldier, and he declared, 'The marriage covenant is the foundation of all our rights.'”

“And then in corollary with that,” Dr. Cott continued, “there are other ways in which this position of civil rights, of basic citizenship, is a feature of the ability to marry and to choose the partner you want to choose. ... It has to do with a black man, Dred Scott, who tried to say, when he was in a non-slave-holding state, that he was a citizen. And in an infamous decision, the Supreme Court denied him that claim. And why this is relevant here is that Justice Taney spent about three paragraphs of that opinion remarking that the fact that Dred Scott as a black man could not marry a white woman -- in other words, that there were marriage laws in the state where he was and many other states, that prevented blacks from marrying whites -- was a stigma that marked him as less than a full citizen.... he remarked on it because of the extent to which this limitation on Dred's ability to marry was a piece of evidence that Justice Taney was remarking upon in his opinion to say this shows he
could not be a full citizen.”


DR. HEREK testified that “There's no inherent relationship between a person's sexual orientation and their ability to be productive and contributing members of society.”

***The evidence clearly discounted the backers of Prop. 8's assertions that sexual orientation is a choice and that so-called “change therapies” can be effective. It also discounted the notion that marriage to someone of the opposite sex is a viable alternative.***

ZARRILLO testified that he could not marry a person of the opposite sex: “I have no attraction, desire, to be with a member of the opposite sex.”

STIER testified as to her sexual orientation: “Well, I'm convinced, because at 47 years old I have fallen in love one time and it's with Kris.”

KATAMI testified the he has been gay, “As long as I can remember.”

PERRY testified: “I have always felt strong attraction and interest in women and formed really close relationships with women, and I have only ever fallen in love with women.” Asked whether she may change her sexual orientation she testified: “I'm 45 years old. I don't think so.”

DR. HEREK testified as to his agreement with research stating: "We suggested the term sexual preference is misleading, as it assumes conscious or deliberate choice and may trivialize the depth of the psychological processes involved. We recommend the term sexual orientation because most of research findings indicate that homosexual feelings are a basic part of an individual's psyche and are established much earlier than conscious choice would indicate."

He testified that “the American Psychiatric Association, the American Psychological Association.... the major professional mental health associations have all gone on record affirming that homosexuality is a normal expression of sexuality, that it is not in any way a form of pathology.”

He testified that he agrees with the position of the American Psychological Association that “the results of scientifically valid research indicate that it is unlikely that individuals will be able to reduce same-sex attractions or increase other-sex sexual attractions through SOCE [sexual-orientation-change efforts]."

He also agreed with the following from the APA: “...the American Psychological Association concludes that there is insufficient evidence to support the use of psychological interventions to change sexual orientation” and testified that no other major mental health organizations have endorsed therapies to change sexual orientation, and that aside from being ineffective, they can cause harm.

“It's important to realize that the underlying assumption of these therapies tends to be that there's something wrong; that homosexuality is a mental illness; that it's something that needs to be cured or something that needs to be fixed or repaired. And that, of course, is completely inconsistent with the stance of the American Psychological Association, the American Psychiatric Association, and other professional organizations in this area,” he testified.

Ryan Kendall, who was forced to undergo “change therapy,” testified that at its conclusion: "I was just as gay as when I started. I knew I was gay, just like I knew I was short and half Hispanic. I never thought those facts would change.”

***History of Discrimination is Ongoing and Includes Prop. 8***

It was also demonstrated that gay men and lesbians continue to suffer from discrimination. In addition to the testimony of Drs. Herek and Meyer, Yale History Professor GEORGE CHAUNCEY, Ph.D., testified: “Lesbians and gay men have experienced widespread and acute discrimination from both public and private authorities over the course of the 20th century. And that has continuing legacies and effects. This has been manifested in the criminalization of sexual intimacy and association; the discrimination in public accommodations, in employment; censorship of images about gay people and speech by gay activists; stereotyping and demonization of lesbians and gay men. And that all this has been drawn on and reinforced sustained patterns of prejudice and hostility.”

Specifically regarding Prop. 8, Dr. Chauncey testified that “the wave of campaigns that we have seen against gay marriage rights in the last decade are, in effect, the latest stage and cycle of anti-gay rights campaigns of a sort that I have been describing; that they continue with a similar intent and use some of the same imagery.”

After viewing several pro-Prop. 8 television ads and videos, Dr. Chauncey testified that the language and images suggesting the ballot initiative was needed to “protect children” were reminiscent of efforts to “demonize” gay men and lesbians ranging from police raids to efforts to remove gay and lesbian teachers from public schools.

“You have a pretty strong echo of this idea that simple exposure to gay people and their relationships is somehow going to lead a whole generation of young kids to become gay,” Dr. Chauncey testified. “The underlying message here is something about the – the undesirability of homosexuality, that we don’t want our children to become this way.

***Gay Men and Lesbians Remain Politically Vulnerable***

GARY M. SEGURA, Ph.D., Professor of American Politics in the Department of Political Science at Stanford University, testified that “gays and lesbians do not possess a meaningful degree of political power. They are not able to protect their basic interests and effectuate their interests into law and to secure those.”

“Relative to some other groups that currently enjoy judicial protection, gays and lesbians are actually, in the statutory and constitutional sense, worse off than some of those groups were when they were granted judicial protection,” Segura testified.

“There is no group in American society who has been targeted by ballot initiatives more than gays and lesbians. They have essentially lost a hundred percent of the contests over same-sex marriage,” Segura testified. “The initiative process has been really the Waterloo of gay and lesbian politics.”

Segura noted that 33 of 34 ballot initiatives against equal marriage were passed over the last decade. (In Arizona it failed because of a clause that would impact health care. It was put back on the ballot the following year and passed.)


***Procreation Not Defining Purpose of Marriage***

DR. COTT challenged statements made by defendant-intervenors' attorney Charles Cooper during his opening statement that procreation is the "central and ... defining purpose of marriage." She testified that the ability or willingness to procreate has never been a litmus test for marriage.

“There has never been a requirement that a couple produce children in order to have a valid marriage. Of course, people beyond procreative age have always been allowed to marry. And known sterility or barrenness in a woman has never been a reason not to allow a marriage. In fact, it's a surprise to many people to learn that George Washington, who is often called the father of our country, was sterile,” she testified.

***Equal Rights Will Not Harm Others***

DR. PEPLAU testified that there is no evidence to suggest that marriage equality would harm others.

"It is very hard for me to imagine you would have a happily married couple who would say, 'Gertrude, we have been married for 30 years, but I think we have to throw in the towel because Adam and Stewart down the block got married,’" Dr. Peplau testified.

DR. BADGETT testified, “I have the opinion that letting same-sex couples marry would not have any adverse effect on the institution of marriage or on different sex couples.”

MICHAEL LAMB, Ph.D., a Professor and Head of the Department of Social and Developmental Psychology at Cambridge University told the court, “We have a substantial body of evidence documenting that a child being raised by same-sex parents are just as likely to be well-adjusted as children raised by heterosexual parents.”

Dr. Lamb also testified (referring to children of gay and lesbian parents) that: “For a significant number of these children, their adjustment would be promoted were their parents able to get married.

Press conference with plaintiff's attorneys following both sides resting their case.

Find all court transcripts here.

UTF Note: For all of UTF's coverage of the Prop 8 trial, go

Friday, January 29, 2010

VIDEO: Radio Host Imus Supports Marriage Rights; Deceased MO Trooper's Partner Denied Benefits

American radio host Don Imus talks to attorney David Boies, plaintiff's attorney in challenge to Prop 8, and declares he supports marriage equality.

A deceased Missouri Highway Trooper's partner of nearly 15 years is being denied benefits, affecting his finances and his 17-year-old son.


Wednesday, January 27, 2010

Prop 8 Trial Coverage Day 11 and 12: Defendant's Last Witness Not Cooperative and Not Knowledgeable; Testimony Concludes

The Prop 8 trial witness testimony ended today with defendant's last "expert" witness David Blankenhorn, the founder and president of the Institute for American Values, a conservative group committed to the "renewal of marriage."

On Tuesday plaintiff's attorney David Boies immediately went after his so-called expert status, almost disqualifying Blankenhorn from being a witness at all. Lisa Keen reports:
Boies went after Blankenhorn’s credibility immediately, noting that he apparently had only one peer-reviewed article to his credit and that was a thesis on a labor dispute between cabinetmaker unions in Britain.

Although Blankenhorn was being offered as an expert witness on how same-sex marriages are detrimental to heterosexual marriages and children, Boies noted that Blankenhorn’s education had been in history.

“You’ve never taught a course in college,” said Boies, “and you have no degree in psychology, psychiatry, sociology, anthropology.…”

“No,” said Blankenhorn, interrupting.

“And in preparation for this testimony, did you undertake any scientific study of what effects permitting same-sex marriages have been in any jurisdiction where same-sex marriages have been permitted?” asked Boies.

“No,” said Blankenhorn. And that’s about when Blankenhorn began to resist Boies’ punches.
In regards to his own expertise, Blankenhorn would go on to say about the research he was using to back up his claims, "I'm simply repeating things that they say" and "These are not my own conclusions."

At this point, Blankehorn refused to cooperate and to answer the questions that Boies directed at him.
At least a dozen times in the testimony, Mr. Blankenhorn refused to answer Mr. Boies when the lawyer posed a question and asked him to answer with a straightforward “Yes, no, or I don’t know.” Mr. Blankenhorn would say that there was no way to answer without extended clarification — even after Judge Walker instructed him to respond on several occasions.

During a typical exchange, Mr. Boies asked the witness if any of the scholars he has relied on had “asserted that allowing same sex marriage would lower the rate of heterosexual marriage.”

Mr. Blankenhorn replied that the “safest answer is I don’t know,” before adding, “But I believe the answer is that some of them have.”

Mr. Boies then asked Mr. Blankenhorn to name the scholars, but the witness refused.

As the questioning devolved into bickering, Judge Walker put both hands in the air to stop the pair.

“Don’t argue with each other,” he said wearily, pointing to Mr. Boies and then to Mr. Blankenhorn. “Just ask a question and give an answer.”
As Boies went down the list of research that Blankenhorn used to support his arguments that same-sex marriage would "deinstutionalize" marriage, Boies pointed out that in fact the research did not support Blankhenhorn's statements.

As the question and answer spiraled into a quarrel around 5pm, Judge Walker said, “I wonder whether in view of the hour that a good night’s sleep might help with this line of questioning." (Read Tuesday's trial transcript or Prop 8 Trial Tracker's Day 11 summary.)

Hear Ted Olson and David Boies press conference from yesterday courtesy of Rex Wockner.

Prop 8 and the Right to Marry has a great list of articles to read on Tuesday's hearing.

The American Foundation for Equal Rights (AFER), the group behind the Prop 8 challenge, reported that today, as the cross-examination of Blankenhorn continued, Blankenhorn actually conceded and bolstered many of the points supporting the case against Prop 8.

Many of Blankenhorn's admissions include:
Marriage is vitally important in American society.Prop. 8 causes grievous harm to gays and lesbians and their children Prop. 8 perpetrates this harm for no good reason.

He admitted marriage is a "public good" and that marriage would benefit gays and lesbians, their children and society at large.

He also testified (text below as shown on screen):

· "Gay marriage would extend a wide range of the natural and practical benefits of marriage to many lesbian and gay couples and their children."

· "Extending the right to marry to same-sex couples would probably mean that a higher proportion of gays and lesbians would choose to enter into committed relationships."

· "Same-sex marriage would likely contribute to more stability and to longer-lasting relationships for committed same-sex couples."

· "Same-sex marriage might lead to less sexual promiscuity among lesbians and (perhaps especially) gay men."

· "Same-sex marriage would signify greater social acceptance of homosexual love and the worth and validity of same-sex intimate relationships."

· "Gay marriage would be a victory for the worthy ideas of tolerance and inclusion. It would likely decrease the number of those in society who tend to be viewed warily as 'other' and increase the number who are accepted as part of 'us.' In that respect, gay marriage would be a victory for, and another key expansion of, the American idea."

· "Gay marriage might contribute over time to a decline in anti-gay prejudice as well as, more specifically, a reduction in anti-gay hate crimes."

· "Because marriage is a wealth-creating institution, extending marriage rights to same-sex couples would probably increase wealth accumulation and lead to higher living standards for these couples as well as help reduce welfare costs (by promoting family economic self-sufficiency) and decrease economic inequality."

· "Extending marriage rights to same-sex couples would probably reduce the proportion of homosexuals who marry persons of the opposite sex, and thus would likely reduce instances of marital unhappiness and divorce."

· "By increasing the number of married couples who might be interested in adoption and foster care, same-sex marriage might well lead to fewer children growing up in state institutions and more growing up in loving adoptive and foster families."
Though Blankenhorn cited polygamy as a reason to oppose same-sex marriage, using the overly used but never factually supported slippery slope argument, plaintiff's power attorney Ted Olson dismissed it.

“This is the game that they’re playing,” Ted Olson said. “They define marriage as a man and a woman. They call that the institution of marriage. So if you let a man marry a man and a woman marry a woman, it would deinstitutionalize marriage. That is the same as saying you are deinstitutionalizing the right to vote when you let women have it. It’s a game. It’s a tautology. They’re saying, 'this is the definition. You’re going to change the definition by allowing people access that don't have it now, and that would change it so that people who currently have access won't want it any more because it's changed.' This is all nonsense. They are not proving that. This is a syllogism that falls apart. The major premise, minor premise and conclusion are empty.”

Today, the Prop 8 proponents rested their case after only two weak witnesses whose expert status was not only eviscerated on the stand, but both conceded the main points of the plaintiff's arguments. The plaintiffs had well over a dozen witnesses.

As reported earlier, Judge Walker will be taking his time to go over the evidence. Final arguments won't be scheduled until late February or early March.

Tuesday, January 26, 2010

MUST SEE VIDEO: Protect Children? Then Mean It!

My friend Rob Tisinai of Waking Up Now does it again with another great rebuttal to the anti-LGBT wingnuts.

Check out more of Rob's videos on YouTube.

Prop 8 Trial Coverage Day 10: Prop 8 Supporters Get A Walloping in Court

Yesterday, attorneys for the plaintiffs challenging Prop 8 submitted incendiary evidence linking (aka Yes on 8 campaign) to campaign messaging that claimed same-sex marriage would lead to polygamy, incest and bestiality. Proving this was part of campaign messaging is essential in providing proof that animus toward LGBT was a motivation for voters to take away marriage rights from gays and lesbians.

Plaintiff's attorney Chris Desseaux played video of simulcast rally hosted by, a rally that excited many of Prop 8 supporters to volunteer and vote against LGBT rights. Following are quotes pulled from the rally:
"Then pedophiles would have to be allowed to marry 6-7-8 year olds. The man from Massachusetts who petitioned to marry his horse after marriage was instituted in Massachusetts. He'd have to be allowed to do so. Mothers and sons, sisters and brothers, any, any combination would have to be allowed."

"Second of all, the polygamists are waiting in the wings because if a man can marry a man and a woman can marry a woman based on the fact that you have the right to marry whoever you want to marry, then the polygamists are going to use that exact same argument and they're probably going to win."

"We are seeing the people of Massachusetts being desensitized day by day concerning homosexuality and becoming more and more adjusted to the idea of homosexual marriage being the law of the land and the homosexual agenda becoming more and more of a powerful element in the life of our society."

"I think a helpful way to think about this is to compare it to 9/11 cuz a lot of us are asking-How does this directly affect us? Well I wasn't directly affected by 9/11 and my guess is most of you weren't either in the sense I didn't know somebody who crashed the plane in the building. I didn't know somebody who was in the building. But after 9/11 the world was a fundamentally different place and that has affected me. The change in the redefinition of marriage is the same type of thing."
Chad Griffin Board President of the American Foundation for Equal Rights (AFER) the group responsible for the Prop 8 federal challenge, responded to yesterday's evidence by saying, "We saw again today how the Prop. 8 campaign sought to link marriage equality to incest, polygamy, bestiality and pedophilia to justify the restriction of people's civil rights. This clearly points to the discriminatory motivations and unconstitutionality of the initiative."

Rick Jacobs of the Courage Campaign, whose quick typing has kept everyone abreast of the going-ons in court by liveblogging at Prop 8 Trial Tracker, responded to the video, remarking, "This evidence is not just a smoking gun. It was an arsenal of incendiary devices directed at the LGBT community and voters. This is how the Prop 8 side won -- through fear and lies."

The day did not get better for the defendants. After plaintiffs rested their case, Prop 8 proponents called the first of possibly only two witnesses to the stand. Kenneth Miller, a professor at Claremont McKenna College who teaches California politics and researches ballot initiatives, testified that LGBT citizens have political power and therefore do not need "suspect class" constitutional protection and therefore justifies ballot initiatives targeting them.

Miller defined political power as access to large amounts of money and to political leaders. He pointed to the fact that the No on 8 campaign raised $43 million compared to Yes on 8's roughly $40 million. He also listed allied politicians and political leaders, such as Attorney General Jerry Brown and California Governor Arnold Schwarzenegger, both whom refused to defend Prop 8.

However, David Boies first questioned the witnesses' "expert" status.

From Prop 8 Trial Tracker:
B: At your depo [sic] not aware of what Mattachine Society was.

M: Yes, I did some research and found out that it was founded by Harry Hay in 1950.

B: Role in 1970s period in which you say an expert.

M: Yes.

B: But you did not know about them when you wrote your report?

M: Yes.

B: In depo you were not aware of general social survey?

M: No, but no know. [sic]

B: You did not know who Alan Speer or Elaine Goldman were and that they were elected as first openly gay in 1976 and 9175 respectively?

M: No. I did not know and do not. Know some were elected in1970s.

B: We object to his testimony as expert out of area of initiatives. He does not even know the key facts.
And later, during cross-examination, Miller experienced a further bruising.
B: When do initiatives provide for compromise and building consensus in society?

M: I cannot say specifically, but in general it’s better to have informed deliberation, consensus building and compromise.

B: How many would you give where initiatives fit the above?

M: Maybe 3 or 4 or 5. Would have to do serious investigation to see how drafting done and campaign run.

B: You have done no such research?

M: Yes. I did large study of outcomes. Idealized picture of legislature. Legislatures do not always live up to those four opportunities. The institutional structure of the legislature set up for those four things, not initiative process.

B: If there is going to be any refinement, it will be in drafting because it cannot be amended once it’s out there?

M: In California, there is no opportunity to amend unless they pull it back.

B: How often has that happened in California?

M: Not infrequently.

B: When was last time?

M: I guess.

B: I’m not asking you to guess. I’m asking you to tell me the last time.

M: Many times it’s pulled back.

B: When was last time in CA that signatures were gathered and then proponents pulled back to make compromise?

M: Discussed in 2005 special, but did not happen.

B: Give me last time in California?

M: I can give you example in Colorado.

B: We’re talking about Ca. You wanted to talk about CA.

T: Objection, He’s badgering the witness.

Judge Walker: Overruled. This is cross-examination.

B: Good God man.
"Looking at the institution of marriage, the state does treat heterosexual couples differently than same-sex couples," Miller testified under cross-examination. He also admitted that lesbians face greater bias than straight women, and directly stated a federal law that defines marriage as an opposite-sex union as well as Prop.8 as discriminatory.

Miller was further harangued when he was asked to point out research that he had done himself versus what the defendant's attorneys had given him.

Of yesterday's hearing, AFER says, "On Monday, Miller admitted that he based his testimony in part on materials provided to him by the attorneys defending Prop. 8, instead of relying on his own "expert" research. Beyond that, he testified that he could not remember whether attorneys provided at least 65 percent of the materials he based his research on, totaling well over 200 documents, articles, etc."

AFER further states, "Miller made several admissions while on the stand that were damaging to the defendants and strengthening to the plaintiffs' case. He also repeatedly revealed his lack of knowledge of key information and research related to his area of purported expertise and this case."

The cross-examination of Miller will continue today in court.

Image: Kenneth Miller

Monday, January 25, 2010

Prop 8 Trial Coverage: A Bad Case of PMS

Guest blogger Davina Kotulski of reports on the Prop 8 trial. This will be Davina's last guest post on the trial. She has done a great job in covering the plaintiff's arguments and witness testimonies. Thank you, Davina!

I want to apologize for Friday’s last blog. To be honest, I had horrible PMS, protect-marriage syndrome. Protect Marriage Syndrome, or PMS, comes on when you have to sit for hours on end and listen to Yale and Cambridge educated experts testify that you are not insane, a child-molester, a degenerate, or an obsessive compulsive gender confused threat to civilization which I guess is supposed to make you feel good.

Only, then it is followed up with having to listen to another lawyer attempt to deconstruct that witness’s testimony to the most absurd, out of context, details, for hours and hours and hours with the purpose of denying your basic dignity, worth as a human being and your constitutional rights.

I had one hell of a case of bad PMS on Friday.


In her testimony on January 15th, Helen Zia talked about being on trial at her work for being gay and how that depleted her, even caused her to burn her journal, which is like losing a limb to a writer.

All LGBT people are on trial under Prop 8. Even though marriage equality supporters have brought forward this constitutional challenge to denying our right to marry, like Zia, we are on trial. We are on trial as parents, as citizens, as worthy human beings. There is nothing right about this.

LGBT people are equal. We are as whole, perfect, and complete as our straight brothers and sisters. We too have hearts that beat and love. When we fall in love it is our hearts first that seek connection with our beloveds. It’s not about plumbing. Dr. Sylvia Rhue with the National Black Justice Coalition says, “When the hearts fit the parts fit.”

The attorney asked Helen Zia, “How do you feel about Lia?”

Zia replied, “ She’s my soul mate. I love her, she’s the person I want to spend the rest of my life, the most important person to me in the world.”

Most husbands and wives, be they straight or gay, know exactly what Zia is talking about. That’s why we choose to marry, because we want to do everything we can to protect, honor, and cherish our beloved.

Zia spoke of her and Lia, getting their domestic partnership licenses. “They issues dog licenses at the same counter,” she said and then discussed getting married in San Francisco in 2004 when it was legal for a little over a month. She spoke of the wedding reception she and Lia had planned with their families that would be attended by her mother, siblings, and some of her sibling’s children.

“My marriage was invalidated a week before our wedding reception.” The attorney asks her, “How did that make you feel?”

Anyone with a heart can guess how it made her feel.

Zia said she felt “devastated, sad, grieved, horrible, our marriage had made us so happy, brought us so much joy, and was suddenly invalidated.” But what struck an even deeper chord for Zia was that she and Lia felt that their relationship was invalidated “and as human beings we were invalidated.”


Zia, and many of the other 4,000 couples like my wife, Molly and I, who were married in 2004 and later judicially invalidated, struggled to get through that dark time until we were able to marry again in 2008.

“Getting married has presented numerous tangible and intangible benefits.” Zia said, “After marriage, my niece came up and said to Lia. “Auntie Lia, now you are really my auntie.”

Marriage has also made a difference to how they relate to people. “People wondered ‘who is this person who is hanging on to you extra close?’

‘This is my partner.’

‘Partner, partner in what business?’

We’d say, ‘we are partners in life.’ And get used to seeing this look on their face, ‘What does life mean? Do you mean life insurance?’”

Marriage also made a difference Lia’s parents and family. “It’s a matter of how our families relate to people,” Zia said. “We show up to every family event and they ask ‘who is that?’ ‘This is Helen’s friend.’ They never got partner, now with marriage, they are able to say ‘Helen is my daughter-in-law.’

For Helen’s mother too, marriage has given her a language to explain her relationship to Lia. “My mother would struggle to say this is Helen’s friend and now she would say ‘this is my daughter-in-law.’ That’s it. end of story. We are not partners in life or business. We are spouses. This is my wife.”


“Marriage is not just about us.” Zia testified. “Our families related to each other differently. Marriage is the joining of two families. My family and Lia’s family relate to each other differently. My brother lived near my father-in-law for years. After we were married, Lia’s father stopped by my brother’s house and dropped things off. When he introduced his children he said ‘These are my daughters and this is my favorite daughter-in-law.’”

Zia spoke of how both she and her wife Lia, shared “the important events in life,” together, births and deaths of family members. “When Lia’s father died, that’s when family comes together.” She spoke of how having marriage secured her place in the family. She was a part of the memorial and listed in the obituary. “Marriage defines who family is, who is in the circle.”

While Zia spoke, the feeling tone in the overflow room was one of soft, gentleness. It was like being in a movie theatre where people are watching a romantic comedy. There were aahhs, warm laughter, and even a few tears as Zia recounted her relationship with Lia, what Lia means to her, and how having legal marriage has affected their life.

It was deeply touching. As the court house closed up that day, one woman spoke with me and said, “I never wanted to get married until I heard Helen Zia speak. I want to know what it’s like to feel what she described.”

In the words of John Lennon, “You may say I’m a dreamer, I’m not the only one. I hope someday you will join us and the world will live as one.”

Look for my new book Love Warriors: The Rise of the Marriage Equality Movement and Why It Will Prevail, April 2010.

For updates of the Prop 8 trial for January 24 and 25th, go to: Courage Campaign’s Prop 8 Trial Tracker. I'm hitting the proverbial showers.

Image: Helen Zia (left) and wife Lia (right).

Sunday, January 24, 2010

Prop 8 Trial Coverage: Day 9 Summary and Day 10 Preview; Closing Arguments Delayed

From the American Foundation for Equal Rights:
Taking the stand Friday, Jan. 22 was Gregory M. Herek, Ph.D. a Professor of Psychology at the University of California at Davis. He testified about the nature of sexual orientation; that mainstream mental health professionals and behavioral scientists do not regard homosexuality as an illness or disorder, and that "change therapies" have been scientifically discounted, and can be extremely harmful. He endured more than five hours of cross examination without wavering from his testimony.

Herek testified that sexual orientation was not readily changeable, and that “change therapies are especially harmful because they present view that homosexuality is an illness or disorder, so when therapy doesn't work, individuals are led to think it's a personal and moral failure."

He also testified about the stigma and prejudice that gay men and lesbians face; the harm to gay men and lesbians and their families caused by Prop. 8; and how domestic partnerships are inferior to marriage and are linked with the stigma gay men and lesbians face.

A "social stigma" gave "a level of permission to attack" gays and lesbians, Herek said. "[Marriage] is not simply a word. Just the fact we're here today suggests this is more than a word."

Olson and Boies also showed Dr. Herek the deposition testimony of defendants' expert Daniel Robinson, one of the four expert witnesses dropped from their witness list. Robinson, like the three other experts dropped from their list, made statements damaging to the defendants' case and in support of the plaintiffs during his deposition, as was shown in court this week.

For, example, the defendants' experts stated that equal marriage would increase family stability and improve the lives of children; that sexual orientation is not something that can be readily changed; and that gay men and lesbians have faced a long history of discrimination including violence – discrimination that continues today and that includes Prop. 8. They also acknowledge broad scientific and professional consensus in favor of equal marriage.
Plaintiffs are expected to submit some more evidence and then rest their case on Monday. Defendants will follow with their own witnesses.

On Friday, Judge Walker announced that he will delay closing arguments for several weeks, indicating he will be closely examining submitted evidence and that he will have more questions during the closing. Arguments are expected to be scheduled in late February, early March.